APPENDICES
national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
¶2.11 Article 10(1) encompasses a number of freedoms, including freedom of expression, the right
to hold and impart opinions and ideas and the right to receive information and ideas. The freedom to receive and the freedom to impart information are two independent rights and not merely corollaries of each other.11 These rights belong to everyone in society and are not simply rights of the press, although freedom of the press and other news media has consistently been recognised in case law as protected by Article 10. Freedom of expression is not limited to written or spoken word but extends to print, radio, television broadcasting, film and artistic works. The European Court of Human Rights has recently confirmed that it is incumbent on the press to impart information and ideas on political issues and on other subjects of public interest, emphasising that not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.12
¶2.12 Article 10 protects not only the substance of ideas and information, but also the form in
which they are conveyed.13 Unlike the press, the broadcast media are subject, by the express terms of Article 10(1), to licensing provisions. The ECtHR has recognised in the context of audiovisual media the importance of pluralism as an aspect of Article 10, noting that "there can be no democracy without pluralism. Democracy thrives on freedom of expression."14
¶2.13 The State has not only a negative obligation to ensure that these rights are not infringed
unless an infringement is necessary in a democratic society, but in some circumstances may have a positive obligation to ensure that the rights contained in Article 10 are safeguarded.15 In deciding whether a positive obligation to safeguard Article 10 exists, regard must be had to the kind of expression rights at stake; their capability to contribute to public debate; the nature and scope of restrictions on expression rights; the ability of alternative venues for expression; and the weight of countervailing rights of others or the public.16
¶2.14 The language of Article 10 recognises that freedom of expression carries with it duties and
1847responsibilities. Some forms of speech have been denied protection under the Convention; for example racist literature and expressions of political support for terrorism.17 The ECtHR in Otto Preminger Institut emphasised the duty on those who exercise freedom of expression to avoid expression which does not contribute to public debate and is gratuitously offensive to others.18
¶Appendix 4 | Legal Materials
¶2.15 Article 10 expressly acknowledges that freedom of expression may be overridden where
necessary to protect legitimate interests. Any restriction on free speech must pass three distinct tests: (a) the restriction must be prescribed by law, (b) the restriction must further a legitimate aim, and (c) the interference must be shown to be necessary and proportionate in a democratic society.19 Lord Steyn explained this approach in Reynolds v Times Newspapers:20 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Key-Questions-Module-3.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf ibid http://articles.latimes.com/2006/jul/28/business/fi-fox28 Section 2 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-using- roles-responsibilities; p4, paras 3.1-3.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness- Statement-of-Robert-Peston.pdf; p3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Nicholas-Robinson.pdf p6, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf Great Britain, Royal Commission on the Press 1961-1962: Report, p101 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-H213.pdf Information Commissioner's Office, What Price Privacy?, p21, para 5.27 p12, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip- Williams.pdf; p8 para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS- Keith-Surtees.pdf On 20 November 2012 five individuals were charged with two conspiracies relating to the receipt and authorisation of payments to public officials pp22-23, lines 9-7, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf Various articles and dates p4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Derek-Webb.pdf p13, lines 12-19, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-19-December-2011.pdf p19, lines 17-22, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 p51, lines 1-15, Thomas Mockridge, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-17-January-2012.pdf; p7, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Dawn-Neesom.pdf; p10, para 42, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dominic-Mohan.pdf; p6, para 43, http://www.levesoninquiry.org.uk/wp- content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf; p9, para 33 http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sara-Cheesley.pdf p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Jacqueline- Hames.pdf p11, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without-fear-or-favour.pdf, p5 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Order-of-2-December-2011.pdf Following an application, I issued a further ruling: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-In- Relation-to-Operation-Motorman-Evidence-11-June-20123.pdf p28, para 6.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf pp29-30, lines 21-7, Philip Coppel, ibid p93, lines 14-15, Richard Thomas, ibid p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf p82, lines 15-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-28-May-2012.pdf p47, lines 14-23, David Cameron, ibid p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-16.pdf p32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-1-to-Witness-Statement-of-Vince- Cable-MP.pdf p52, lines 16-22, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-13-June-2012.pdf pp22-23, lines 10-3, ibid p25, para 5.28, ibid Part E [2012] EWCA Civ 1039; http://www.bailii.org/ew/cases/EWCA/Civ/2012/1039.html p28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf pp101-102, lines 7-9, Dr Colette Bowe and Ed Richards, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Morning-Hearing-12-July-2012.pdf see Figure 1 Senior Lecturer in the Department of Media & Communications, Goldsmiths, University of London K pp44-46, lines 22-11, Sir Charles Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Afternoon-Hearing-12-July-2012.pdf pp56-57, lines 24-4, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-13-July-20121.pdf p42, lines 4-8, Viscount Rothermere, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf Part K, Chapter 7, para 4.36 1805 L [2001] 2 AC 127
"The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule and the regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation."
¶2.16 Legitimate grounds for interfering with freedom of expression are set out in Article 10(2).
The court will require evidence to justify any interference with freedom of expression and not simply mere assertion.21 The ECtHR has emphasised that there is little scope under Article 10(2) of the Convention for restrictions on the press in relation to political speech or in relation to debate on matters of public interest and the court will require the strongest reasons to justify impediments to the exercise of such speech.22 However, in the context of other restrictions imposed by Article 10(2), for example the protection of health or morals, cases have recognised that states enjoy a wide margin of appreciation as to appropriate restrictions on freedom of expression.
¶2.17 The legitimate aim of "protection of the reputation and rights of others" set out in Article 10(2)
1848permits a wide range of interests to be invoked as a justification for imposing restrictions on freedom of expression. The interests most commonly invoked are the right to reputation and the protection of privacy (which is often referred to as the tort of misuse of private information in domestic law).23 However, the rights and interests of others which may justify restrictions on the freedom of speech are broader than reputation. For example, courts have recognised the need to protect the religious rights of others by restricting offensive material, to protect intellectual property rights, to protect a defendant's right to a fair trial, and to protect confidential information held subject to a duty of confidence.24